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Procedure for Appointing a Guardian for an Adult

Talk to an attorney

The information on this page is not a substitute for legal advice. You are not required to hire an attorney, but legal matters can be complicated. Consider talking to an attorney to go over your options.

See our Finding Legal Help page for information about ways to get legal help. One way to talk to an attorney is to visit a free legal clinic. Clinics provide general legal information and give brief legal advice. You might also hire an attorney for just part of your case or to do one particular thing, rather than represent you for the whole case. Legal help is also available at discounted rates for people with modest incomes.

Definition of incapacity

Incapacity is a judge's decision, not a doctor's decision, although medical information is important to help the judge decide whether a person is legally incapacitated. Incapacity is measured by the respondent's functional limitations and it means that the respondent's ability to:

receive and evaluate information; or

make and communicate decisions; or

provide for necessities such as food, shelter, clothing, health care, or safety

is impaired to the extent that s/he lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care.

To prove that the respondent is incapacitated, the petitioner must prove these things by clear and convincing evidence.

Procedure for appointing a guardian

This is a general description of the most common procedures, but some procedures may vary from court to court. And the judge may require procedures not described here based on the circumstances of a case.

Petition to appoint a guardian

Any adult may file the petition. The petitioner may request that s/he or someone else be appointed guardian. The petitioner must file the petition in the county in which the respondent resides or is present. There is a filing fee, but the fee can be waived. For more information, see our pages on Filing Procedures, Fees, and Fee Waiver.

the respondent's closest adult relative if respondent's spouse, parents, and adult children cannot be found;

the respondent's guardian, conservator, caregiver and custodian;

the person nominated as guardian by the respondent or by the respondent's parent, spouse, or caregiver;

the respondent's heathcare decision making agent;

the respondent's agent under a power of attorney; and

any other interested person.

The respondent must be personally served in a manner permitted by URCP 4. The respondent's spouse and parents must be personally served in a manner permitted by URCP 4 if they can be found within the state. The others listed may be served by first class mail or other method permitted by URCP 5. Proof of service must be filed with the court. For more information and forms, see our page on Serving Papers.

If the person to be served cannot be found, they can be served by alternative means. For more information and forms, see our page on Alternative Service.

Objecting to the petition

Usually a party "answers" a petition, but in a guardianship, any person served with notice may "object" to the petition. The person may file a written objection before the hearing or appear at the hearing to raise the objection verbally.

Lawyer for the respondent

Utah law requires that the respondent be represented by a lawyer. The respondent may choose a lawyer, or the petitioner may ask the court to appoint one. The court may need to continue the hearing until the respondent has a lawyer. The respondent will usually have to pay for the lawyer unless the petition is without merit. There are some programs for free or reduced-cost legal services, but they are very limited. For more information, see our page on Finding Legal Help.

The respondent's lawyer represents the respondent in the traditional sense as an advocate, not as a guardian ad litem. The judge may also appoint a guardian ad litem, who will represent the respondent's best interests.

Examination of the respondent

The court may direct that the respondent be examined by a physician. The petitioner, respondent or any interested person may request that the respondent be examined.

Court visitor

Utah law requires the respondent to attend the hearing. If it is proposed that the respondent be excused from attending the hearing, the court must appoint a court visitor to investigate the ability of the respondent to appear unless there is clear and convincing evidence from a physician that the respondent has fourth stage Alzheimer's disease, extended coma, or an intellectual disability with an intelligence quotient score under 25.

A visitor is a special appointee of the court with no personal interest in the proceedings. The petitioner, respondent or any interested person may request that a visitor be appointed. The court may appoint a visitor on its own initiative.

For more information about court visitors and volunteering to serve as a court visitor, see our page on Volunteer Court Visitors.

Mediation

Hearing

The court will set a date for a hearing when the petition is filed. This hearing is not a trial with testimony by witnesses, although the judge may ask questions. The judge will consider:

whether the petitioner has the necessary claims and proof;

whether proper notice of the petition and hearing has been given;

whether the respondent is present or has been excused from attending the hearing;

whether there is a need to appoint a court visitor;

whether there is a need to appoint a lawyer to represent the respondent;

whether the necessary documents have been filed;

whether the proposed guardian is willing to serve;

whether the proposed guardian is required to take the guardianship test and file the declaration of completion of testing; and

whether there are any objections.

Unless someone objects to the petition, the judge will appoint the guardian at the hearing. If there is an objection, the case will be referred to mediation or set for trial at which the petitioner will have to prove the claims made in the petition.

For more information about how to present yourself at the hearing, see our page on Going to Court.

Evidence of incapacity

The petitioner must prove that the respondent is incapacitated by clear and convincing evidence. That means the evidence must leave no serious doubt that the respondent's ability to:

receive and evaluate information; or

make and communicate decisions; or

provide for necessities such as food, shelter, clothing, health care, or safety

is impaired to the extent that s/he lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care.

Even if no one objects to the appointment of the guardian, the petitioner must prove incapacity by clear and convincing evidence. The petitioner should include with the petition (or file before the hearing) affidavits or statements showing clear and convincing evidence of incapacity. Examples include statements of any witnesses who are familiar with the respondent and/or evaluations by respondent's physician.

The judge may ask the petitioner to proffer clear and convincing evidence that the respondent is incapacitated. Proffering evidence means that the party can tell the judge in narrative form the facts showing incapacity. If someone objects and the case goes to trial, the petitioner will have to present testimony or other clear and convincing evidence of incapacity.

Evidence of need for authority

The petitioner must also present evidence about what authority the guardian should have. For a description of what authority the guardian might need, see the section on Guardian's authority. The petitioner must present evidence that the guardian's authority to make decisions in specific areas is necessary or desirable as a means of providing continuing care and supervision for the respondent. The court's order will limit the guardian's authority to these areas.

If the petitioner is seeking plenary or full authority, the petitioner must prove that no alternative exists and that nothing less than a full guardianship is adequate.

Pre-appointment test

Rule 6-501 requires that, before a person can be appointed as guardian, the person must take a test about their authority and responsibilities and file a Certificate of Completion with the court. The law does not require a test for a professional guardian or a parent appointed as guardian of their adult child.

The test is not meant to screen anyone out of their role as guardian; it is meant to reinforce some of the responsibilities of the office. It is permitted to complete the test before appointment and file the form with the petition.

Order and letter of guardianship

If the court is satisfied that the respondent is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the respondent, the court will appoint a guardian. The guardian's authority will be limited unless nothing less than a full guardianship is adequate. The court's order will include the guardian's authority, and the letter of guardianship will conform to the order.

The letter shows the guardian's authority to make decisions for the protected person. The guardian will need to provide a copy of the letter to third parties, for example, the protected person's healthcare provider. The guardian should have the court certify at least one copy of the letter. Additional certified copies are available upon request and payment of the required fee.